GREGORY MCLAUGHLIN, Employee/Appellant, v. CHILD CARE RESOURCE AND REFERRAL, SELF-INSURED, adm=d by BERKLEY RISK ADM=RS CO., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 7, 2005

 

No. WC04-149

 

HEADNOTES:

 

DISCONTINUANCE - MATTERS AT ISSUE; PRACTICE & PROCEDURE - EXPEDITED HEARING. Where the compensation judge considered the change in the employee=s residency, and the related diminution of the employee=s commute to work, as the primary bases for allowing a discontinuance of benefits, and where these factors were not asserted by the self-insured employer as bases for its petition to discontinue, this resulted in an improper expansion of issues not outlined in the petition to discontinue and not contemplated by either party at the time of the hearing, and it was clearly erroneous to evaluate an issue not raised by the employer=s petition to discontinue.

 

TEMPORARY PARTIAL DISABILITY; JOB OFFER.  Where the compensation judge determined that although the employee=s original rejection of a job offer was reasonable in view of his job duties, two-hour daily commute to work, work restrictions and physical capabilities, but also determined that his continued rejection of that job, after he later moved his residence to eliminate his commute, was unreasonable, we conclude that the compensation judge erred by considering that job offer as a relevant factor in determining the employee=s entitlement to temporary partial disability benefits after November 2003.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical reports and opinions from the employee=s treating physicians, supports the compensation judge=s finding that the employee sustained 23% permanent partial disability of the whole as a substantial result of his work-related injury.

 

Affirmed in part and reversed in part.

 

Determined by: Rykken, J., Stofferahn, J., and Pederson, J.

Compensation Judge: Peggy A. Brenden

 

Attorneys:  Mary M. Morin, Morin Law Office, Minneapolis, MN, for the Appellant.  Timothy P. Jung, Cronan, Pearson, Quinlivan, Minneapolis, MN, for the Respondent.

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s discontinuance of temporary partial disability benefits; the self-insured employer cross-appeals the award of additional permanent partial disability.  We reverse in part and affirm in part.

 

BACKGROUND

 

On December 18, 2001, Gregory McLaughlin, the employee, sustained an admitted low back injury while working in a bus driver and maintenance position with the Head Start program conducted by Child Care Resource & Referral, the employer.  At the time of the injury, Child Care Resource was self-insured for workers= compensation liability.  The employee, 48 years old on the date of injury,  held two jobs and earned a combined weekly wage of $1,330.93.  The employee=s primary employment was a full-time job as an auxiliary operator in a wastewater treatment facility with the City of Rochester, where he had worked for approximately 25 years by the time of the hearing.  That job paid approximately $24.00 per hour and included significant fringe benefits.  The Child Care Resource position, which he had held for approximately 5 years and at which he worked approximately 40 hours per week during evenings and weekends, paid an hourly rate of $9.93.  The employee=s residence as indicated on the first report of injury was in Rochester.  At some point after the injury, the employee moved to Winona, Minnesota, about an hour-long commute from Rochester.

 

On December 26, 2001, due to the severity of his injury, the employee underwent low back surgery in the nature of an L4 laminectomy and bilateral L5 foraminotomies with removal of large fragments, performed by Drs. Robert J. Spinner and Geoffrey R. Dixon.  In March 2002, the employee began working with a QRC, John Peterson.  The R-2 rehabilitation plan indicates that the goal was to return the employee to work with the employer and his second employer.  On March 14, 2002, the employee was released to work at reduced hours within physical work restrictions at the City of Rochester job.  On April 25, 2002, the employee was released by Dr. Dixon to full-time work at his job with the City of Rochester, still within physical work restrictions.   In May 2002, Dr. Dixon released the employee to 12 hour shifts, after a request by the City of Rochester, since that was the pre-injury practice.

 

On or about May 6, 2002, the employee returned to work for the City of Rochester on a full-time basis.  The employer, who had paid temporary total disability benefits up to that date, commenced payment of temporary partial disability benefits.  On May 6, 2002, the City of Rochester sent the employee a memorandum advising that it was rescinding the permission it had earlier granted to the employee to work at a second job.  The employer advised that in the future it would consider a request from the employee to work at another job, depending on the employee=s recovery process and ability to fully perform his duties.^[1]  The employee continued to work in a light-duty position, and in July 2002, the employee=s QRC noted that Ait remains unclear whether permanent work will be appropriate for him with the City of Rochester.@

 

By letter dated August 2, 2002, Child Care Resource offered the employee a 30-hour per week job in a bus driver/maintenance position.  This same type of letter was sent to all Head Start employees, inviting them to work during the new school year between August 2002 and May 2003; the employee had been sent the same type of letter in the past.  The August 2, 2002, job offer did not contain a job description and did not refer to the employee=s restrictions.  The employee did not accept this offer.

 

In September 2002, the employee was evaluated by Dr. Loi K. Phuong at the Mayo Clinic, who confirmed Dr. Dixon=s restrictions and indicated that the employee should continue to limit his work to a 40-hour week.  In October 2002, the employee underwent a functional capacities evaluation (FCE) at the Mayo Clinic.  The physical therapist who conducted the evaluation concluded that the employee=s work activities should be restricted, that he currently did not meet the requirements of his auxiliary operator position with the City of Rochester, and that the employee would be unable to work 16 hours per day, between his two jobs, as he had done at the time of his injury.  The physical therapist recommended a work hardening program to increase the employee=s functional level.

 

Dr. Kurtis Hoppe, a physical medicine and rehabilitation specialist at the Mayo Clinic, indicated that the employee should avoid excessive bending, twisting, and lifting over 35 pounds, and that he could work 40 hours per week.  Dr. Hoppe recommended a work-hardening program to increase the employee=s work tolerance, but apparently that program was not authorized.  Dr. Hoppe also recommended a review of a job description from Child Care Resources, or, alternatively, a job site review, evidently to review the employee=s ability to perform that job.

 

On December 10, 2002, the employee was evaluated by Dr. Mark Engasser at Child Care Resource=s request.  Dr. Engasser opined that the employee was capable of working more than 40 hours per week as long as he adhered to restrictions of sitting or driving no more than one hour at a time, ability to change positions frequently, occasional bending, stooping, and squatting, occasional lifting up to 40 pounds and frequent lifting up to 20 pounds.  Dr. Engasser did not indicate how many hours the employee could work.  In a report dated January 9, 2003, Dr. Hoppe again advised that the employee should limit his work to 40 hours per week.

 

On February 3, 2003, Child Care Resource again offered the employee a 30-hour per week job in a maintenance specialist position.  The written offer indicated that the job responsibilities had been modified to meet the physical restrictions of Dr. Engasser=s report, but did not specifically indicate what those modifications were.  On February 7, 2003, Child Care Resource offered the employee the same position, but indicated that the number of hours could be reduced to a minimum of 10 hours per week.^[2]  The employee again did not accept this offer, relying on his treating doctor=s restrictions that he work no more than 40 hours per week. 

 

The employee continued to work with his QRC and to treat at the Mayo Clinic.  In February 2003, by referral from Dr. Hoppe, Dr. E. Lyle Gross replaced Dr. Hoppe as the employee=s treating physician.  Dr. Gross evaluated the employee and agreed that the employee should be limited to 40 hours per week and recommended a work hardening program.

 

In a note dated February 18, 2003, the QRC stated that, according to the director of human relations for the City of Rochester, the City would not agree to allow Mr. McLaughlin to Amoonlight@ at his second job if he was incapable of performing his current job. In his report of February 28, 2003, the QRC stated that:

 

At this point, the City of Rochester has been able to provide work for Mr. McLaughlin.  However, in conversation with the City of Rochester director of human resources, . . . I have determined that this position is somewhat tenuous, and the City of Rochester will not make this position available to Mr. McLaughlin permanently, pending further evaluation/work hardening.  Mr. McLaughlin will likely need to demonstrate greater physical capacity.

 

The QRC also noted that he was aware that Child Care Resource had offered the employee a job, but he opined that the offered employment was not consistent with the treating physician=s opinion.

 

On February 26, 2003, the employer filed a notice of intention to discontinue benefits (NOID), contending that temporary partial disability benefits would be discontinued as the employee refused a job offer to return to work at Child Care Resources on February 5.  On February 27, 2003, the employee filed a claim petition, claiming entitlement to 23% permanent partial disability benefits.  The employer paid 14% permanent partial disability benefits, so the remainder was in dispute pending an evidentiary hearing.

 

The employer=s NOID was addressed at an administrative conference held on March 28, 2003.  In an order on discontinuance filed on March 31, 2003, Compensation Judge Brenden denied the employer=s request to discontinue benefits.  She concluded that, based upon the 40-hour work week limit imposed by Dr. Gross, Ait was reasonable for the employee to refuse the position offered until his doctor had an opportunity to review the details of the job and determine if it was appropriate.@

 

In his report of March 31, 2003, the QRC stated that the City of Rochester would make a final decision regarding employability once it received assurance from the employee=s treating physician that the employee could perform the essential functions of his job.  In May 2003, the QRC met with the employee and Dr. Gross, who reviewed a job description detailing the employee=s job responsibilities at the City of Rochester and also reviewed the proposed job duties at Child Care Resources.  Dr. Gross restricted the employee to 40 hours of work per week, advising that the employee would be at greater risk for re-injury if he worked more than forty hours per week and that the employee had some difficulty performing his current job duties.  Dr. Gross also expressed concern about some of the duties involved with the Child Care Resource position, including the flexion and moving of heavy materials on a repetitive basis that would be required for the painting portion of the job.   He also expressed concern about the requirement that the employee assist passengers on and off the bus and with seating on the bus, tasks which the doctor deemed to be high risk in nature.

 

On July 28, 2003, the employee accepted a permanent full-time modified position with the City of Rochester as a maintenance worker at the water treatment facility; Dr. Gross approved the tasks required of that job.  On that same date, the QRC closed the rehabilitation file, relying on Dr. Gross=s opinion that the employee should not exceed a 40 hour work week and that the proposed job duties with Child Care Resource would exceed his capabilities.  Based on Dr. Gross=s determination that the employee could perform the tasks of the position with the City of Rochester, the QRC submitted a closure report with the employer=s insurance administrator and filed an R-8 form with the Department of Labor and Industry.

 

The employee returned to Dr. Gross for treatment in August 2003 due to increased symptoms.  In October 2003, the employee requested that the QRC re-open his case since the employee was concerned about his worsening symptoms and he wanted to increase his income in order to return to his pre-injury financial status.  The QRC noted that the employee was concerned that he would not be able to continue in his position with the City of Rochester, and wrote to the insurance administrator, requesting approval for a rehabilitation consultation and rehabilitation services.  On October 13, 2003, the employer filed a petition to discontinue temporary partial disability benefits based upon the employee=s refusal of the Child Care Resource job offers.  That petition was consolidated with the employee=s claim petition, and was set on for a hearing.

 

On October 30, 2003, the QRC completed a rehabilitation consultation, found the employee to be eligible for additional rehabilitation services, and submitted an R-2 rehabilitation plan to the employer.^[3]  The QRC advised the employer that the employee reported concern about his persistent back and groin pain, and that he noted a decreased ability to perform his job.

 

In November 2003, the QRC continued to recommend that the employee work within his restrictions for the City of Rochester since Aas long as he is able to maintain his employment with the City of Rochester, there are no more reasonable vocational options available to him.@  On November 15, 2003, the employee sold his home in Winona, Minnesota, and moved to Rochester, at least in part so he would no longer have to commute one hour each way to his job with the City of Rochester.^[4]  He testified that his commute aggravated his hip, pelvis and low back symptoms.

 

A hearing was held on January 27, 2004, to address the employee=s claim petition and the employer=s petition to discontinue benefits.  In findings and order served and filed on March 4, 2004, the compensation judge determined that the employee=s refusal of Child Care Resource=s job offers were reasonable until November 2003 when the employee moved to Rochester from Winona.  She concluded that the employee had demonstrated his ability to commute two hours per day to work, and that once he eliminated his commute, it was reasonable to expect that he had the capacity to perform appropriate light duty work.  The compensation judge allowed discontinuance of the employee=s temporary partial disability benefits as of the day after the employee moved, and allowed a credit for benefits paid after that date.

 

The compensation judge also awarded benefits based on an additional 9% permanent partial disability, subject to the credit awarded for the temporary partial disability benefits paid after November 2003.  The employee appeals the discontinuance of temporary partial disability benefits and the resulting credit to the employer.  The employer cross-appeals the award of additional permanent partial disability. 

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1.  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

Temporary partial disability

 

Temporary partial disability benefits are payable while the employee is employed, earning less than his weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee=s partially disabled condition is due to the injury.  Minn. Stat. ' 176.101, subd. 2(b).  In this case, once the employee returned to work in May 2002, the self-insured employer paid temporary partial disability benefits to the employee based upon his wage loss resulting from his inability to return to both of the jobs that he held at the time of his injury in 2001.  The employer later petitioned to discontinue temporary partial disability benefits, contending that the employee unreasonably refused offers to return to work for Child Care Resource. 

 

The compensation judge granted the petition to discontinue, allowing discontinuance of temporary partial disability benefits after November 15, 2003,^[5] and the employee appeals from that discontinuance.  The compensation judge found that prior to November 15, 2003,  the employee=s rejections of the job offers made on August 2, 2002, February 3, 2003, and February 7, 2003, were reasonable in view of the physical demands of the employee=s City of Rochester job and his continued symptoms.  The compensation judge, however, also found that circumstances changed in November 2003, once the employee moved from Winona to Rochester, thereby eliminating his two hours of daily commuting to work.  She concluded that the February 7, 2003, position was continuously available to the employee up until the time of hearing, and that the employee should have accepted the job offer once he moved, since his previous ability to commute two hours per day demonstrated his capacity to perform appropriate light duty work.  On that basis, the compensation judge determined that the employer could discontinue benefits as of the day after the employee moved to Rochester.   In her memorandum, the compensation judge explained her conclusions as follows:

 

Until February 7, 2003 the jobs offered to the employee by Child Care Resource & Referral all required a thirty hour work week.  Given that the employee was already working at his auxiliary operator job at least forty hours a week, adding an additional thirty hours - - all at once - - was unreasonable. The physical difficulties he experienced during and after completing a day=s work on his auxiliary operator job offer strong proof that he was physically unable to take on another thirty hours of work a week.

 

On February 7, 2003 - when the employer=s job offer was reduced to ten hours per week and the employee was assured all work would fall within Dr. Engasser=s restrictions - the question of the employee=s fitness for the Maintenance Specialist position is a close one.  I still find, however, that the weight of the evidence supports the conclusion the physical demands of the employee=s existing work routine as an auxiliary operator - - coupled with his two hours of commuting - - placed him at maximum physical capacity.

 

When the employee moved to Rochester, however, and eliminated two hours of his typical work day by eliminating his commute, the facts changed dramatically.  The employee, while living in Winona and driving to Rochester to work, established he could drive two hours per day over and above the typical forty hours he worked as an auxiliary operator.  It is reasonable to expect that if he can drive an hour to and from work, he also has the capacity to perform appropriate light duty work.  Given the strong working relationship that the employee has with Child Care Resource & Referral and the employer=s commitment to work with the employee to find work within his restrictions, I am not persuaded he has been physically unable to work for the employer in the Maintenance Specialist position since he moved to Rochester.

 

The employee argues that it was reasonable for the employee to reject the additional work with Child Care Resource, based upon Dr. Gross=s work restrictions limiting him to 40 hours per week.  The employee argues that there is no evidence in the record that the employee had knowledge or would have been aware that the job remained available until the date of the hearing, when the employer=s representative testified that the job remained available, and that the judge=s finding that by November 2003 it became unreasonable for him to refuse the job Awould create an unreasonable expectation and affirmative obligation upon the employee to continue to reject a job offer which had already been rejected once.@  In addition, the employee contends that to accept such a job would have violated his primary employer=s express prohibition against a second job while he remained subject to physical work restrictions, and therefore could jeopardize his employment with the City of Rochester.  The employee also argues that the compensation judge improperly expanded the issues to address an issue or basis for discontinuance that was not asserted by the employer.

 

The employer argues that the employee has an affirmative obligation to mitigate his wage loss and to attempt to restore his lost earning capacity, and that A[i]nstead of working with the Employer to facilitate a return to modified duties, he worked against that effort.@  We believe that the evidence contradicts this contention.  There was no allegation that the employee was not cooperating with his rehabilitation assistance.  The rehabilitation and medical records consistently show that the employee, his QRC and his treating physicians remained in contact with representatives from the City of Rochester and the employer concerning his work restrictions, modified job duties, hours of work and job requirements of the job offered by Child Care Resource. 

 

Since May 6, 2002, the employee has continued to work for the City of Rochester on a full-time, 40 hours per week basis, in a modified position.  In July 2003, the employee=s QRC closed his rehabilitation file, relying on Dr. Gross=s opinion the employee should not exceed a 40 hours work week and that the proposed job duties with Child Care Resource would exceed his capabilities.  The R-8 notice of rehabilitation plan closure indicates that the employee had returned to work with a different employer, the City of Rochester, and the basis for the plan closure was that the plan was completed and the employee had returned to suitable gainful employment.  There is no indication in the record that the employer disputed the closure of rehabilitation services at that point.  In October 2003, the QRC requested that rehabilitation services be reopened since the employee was concerned about his symptoms and his ability to perform his job and since he wanted to increase his income.  In November 2003, the QRC continued to recommend that the employee work within his restrictions for the City of Rochester since Aas long as he is able to maintain his employment with the City of Rochester, there are no more reasonable vocational options available to him.@  There is no evidence in the record, either way, on whether the employer and insurer objected to the QRC=s recommendation that the rehabilitation plan be re-opened.  We further note that there was no evidence presented that would indicate the City of Rochester had reversed its earlier prohibition of a second job while the employee=s duties remained limited by his physical work restrictions.

 

In addition, since February 2003, no additional job offer was made to the employee by Child Care Resource, even though the compensation judge found that the position was continuously available to the employee from February 7, 2003, to the time of the hearing.  Although at the hearing a representative from Child Care Resource testified that the earlier job offer remained open to the employee, there is no evidence to show that the employee had any basis to anticipate that the earlier offer still remained open to him.  Further, the job described by the employer=s representative at the time of the hearing was not the same as offered on February 7, 2003.  Subsequent modifications of the job offer made at the hearing cannot retroactively re-characterize the job offer originally extended.  See Morse v. Sheldahl, 61 W.C.D. 1 (W.C.C.A. 2000) (any job offers presented at the hearing were not properly before the judge).^[6]

 

The compensation judge erred by considering a job offer made approximately 9 months before the employee moved, and which the employee had properly rejected at the time it was made, as a relevant factor in determining the employee=s entitlement to temporary partial disability benefits after November 2003.

 

Further, on a petition to discontinue benefits, the employer and insurer have the burden of proving by a preponderance of the evidence that the discontinuance of benefits is warranted.  Violette v. Midwest Printing, 415 N.W.2d 318, 322, 40 W.C.D. 445, 453 (Minn. 1987).  That burden of proof may properly shift to the employee to show entitlement to ongoing benefits once an employer and insurer have sustained their initial burden.  See Larson v. Hauenstein and Burmeister, slip op. (W.C.C.A. June 24, 1992).  However, pursuant to Minn. Stat. ' 176.238, subd. 5, a hearing pursuant to a petition to discontinue benefits Ashall be limited to the issues raised by the [NOID] or petition [to discontinue benefits] unless all parties agree to expanding the issues.@  Cf. Putnam v. Yellow Freight Systems, slip op. (W.C.C.A., Oct. 26, 1995).

 

In this case, the issue before the compensation judge was whether the employee unreasonably refused work within his restrictions, and that issue must be evaluated in light of the circumstances that existed at the time of the petition.  The compensation judge=s reliance on a factor not present at the time the petition was filed expanded the issues beyond those presented by the petition to discontinue.  The petition was filed on October 13, 2003.  Given that the employee did not move to Rochester until mid-November 2003, the employee=s change in residence could not have been considered as a relevant factor at the time the petition to discontinue was filed.  At the hearing, on January 27, 2004, the employer did not raise the employee=s change in residence as a relevant factor or basis for discontinuance.  Yet the employee=s change in residence and his corresponding decreased commute to work served as the primary bases for the compensation judge=s discontinuance of benefits after November 15, 2003.

 

There is insufficient evidence that the employer and insurer were affirmatively asserting the employee=s change in residence as a basis for discontinuing payment of  benefits.  The compensation judge considered the change in the employee=s residency, and the related diminution of the employee=s commute to work, as the primary bases for allowing a discontinuance of benefits.  We conclude that this resulted in an improper expansion of issues not outlined in the petition to discontinue and not contemplated by either party at the time of the hearing, and that it was clearly erroneous to evaluate an issue not raised by the employer=s petition to discontinue.  See Thu v. Befort Roofing, Inc., slip op. (W.C.C.A. Oct. 24, 2000); see also Rauer v. Chrysler Corp., slip op. (W.C.C.A. Aug. 31, 1999) (Athe compensation judge=s own identification of the >nature= of the employee=s injury as an issue, unpursued as it was by the employer and insurer@ and not listed in their petition to discontinue, was an issue neither litigated nor proven by the employer and insurer).

 

We therefore reverse the compensation judge=s finding that the employee unreasonably rejected the February 7, 2003, job offer after his move to Rochester from Winona (Finding No. 13), and reverse the grant of discontinuance of the employee=s temporary partial disability benefits as set out in Order No. 1.  We accordingly reverse the credit granted to the employer for all temporary partial disability benefits paid beyond November 15, 2003, the day the employee moved to Rochester, and order reinstatement of those benefits to the employee.

 

Permanent partial disability

 

The employee claimed entitlement to benefits based on a rating of 23% permanent partial disability of the whole body under Minn. R. 5223.0390, subp. 4D, relying upon Dr. Hoppe=s January 8, 2003, report, wherein Dr. Hoppe indicated that the employee=s final diagnoses included bilateral L5 and S1 radiculopathies, status/post bilateral L5 foraminotomies and L4 laminectomy, chronic low back and foot pain, and left great toe weakness.  Dr. Hoppe based the rating on 9% for Minn. R. 5223.0390, subp. 4D, 3% for subp. 4D(1), 2% for subp. 4D(2), and 9% for subp. 4D(4).  The employer paid 14% permanent partial disability under Minn. R. 5223.0390, subp. 4D, 4D(1), and 4D(2).  At the hearing, the employee claimed an additional 9% permanent partial disability of the whole body under Minn. R. 5223.0390, subp. 4D(4), which requires an additional concurrent lesion on the contralateral side at the same level or on either side at other levels that meets all the criteria of this sectionBradiculopathy from a second lesion.  The employer argues that the L5 level represents the only level of radiculopathy, and the employee alleges there is additional radiculopathy at S1.

 

The employer argues that the employee does not meet the requirements of subp. 4D(4) in that there is no myelographic, CT scan, or MRI evidence of intervertebral disc bulging, protrusion or herniation that impinges on the S1 nerve root.  The employer also relies upon Dr. Engasser=s opinion that the employee had sustained 14% permanent partial disability under Minn. R. 5223.0390, subp. 4D, 4D(1), and 4D(2), and that the employee was not entitled to the additional 9% under subp. 4D(4).  The employer also argues that Dr Hoppe=s opinion report preceded the May 23, 2003, EMG and the May 23, 2003, and October 13, 2003, MRI scans.

 

Minn. R. 5223.0390, subp. 4, provides in part:

 

Subp. 4. Radicular syndromes.

*  *  *

D.  Radicular pain or radicular paresthesia, with or without lumbar pain syndrome, and with objective radicular findings, that is, hyporeflexia or EMG abnormality or nerve root specific muscle weakness in the lower extremity, on examination and myelographic, CT scan, or MRI scan evidence of intervertebral disc bulging, protrusion, or herniation that impinges on a lumbar nerve root, and the medical imaging findings correlate anatomically with the findings on neurologic examination, nine percent with the addition of as many of the following subitems (1) to (4) as apply, but each may be used only once:

(1) if chronic radicular pain or radicular paresthesia persist despite treatment, add three percent;

(2) if a surgery other than a fusion performed as part of the treatment, add two percent, if surgery included a fusion, the rating is as provided in subpart 5;

*  *  *

(4) additional concurrent lesion on contralateral side at the same level or on other side at other level, which meets all of the criteria of this item or item E, add nine percent.

 

The compensation judge awarded the additional 9 % permanent partial disability, citing Dr. Hoppe=s report.

 

The compensation judge's finding regarding the rating of permanent partial disability is one of ultimate fact and must be affirmed if it is supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 274, 39 W.C.D. 771, 778 (Minn. 1987).  In addition to Dr. Hoppe=s report, the record contains additional evidence regarding the employee=s diagnosis.  In August 2003, Dr. Gross reviewed the employee=s current symptoms and the May 2003 EMG and MRI studies.  Dr. Gross diagnosed bilateral L5/S1 radiculopathy.  On September 26, 2003, Dr. Gross reviewed the employee=s records and noted that Dr. Spinner=s notes after the employee=s surgery indicate S1 and L5 radiculopathy.  Dr. Dixon=s January 29, 2002, note indicates L5 and S1 involvement.  The October 17, 2002, EMG report indicates EMG evidence of longstanding, bilateral L5-S1 radiculopathies.  Dr. Hoppe=s October 2002 note refers to L5 and S1 radiculopathies.  Dr. Gross concluded that Athe two levels documented from the time of onset to my examination accounts for the 23% permanent impairment rating.@  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Substantial evidence supports the compensation judge=s finding that the employee sustained a 23% permanent partial disability rating under Minn. R. 5223.0390, subp. 4, and we affirm.